Opinion
2:23-CV-00786-MJH-RAL
06-04-2024
DAVID E. VUCISH, INDIVIDUALLY, AND AS PARENT AND LEGAL GUARDIAN; M.D.V., A MINOR; AND MICHELLE V. ALBERT, Plaintiffs, v. JAMES JOSEPH PHILLIPS, JOHN RYAN, THE CITY OF JEANNETTE, Defendants.
Honorable Marilyn J. Horan, United States District Judge
REPORT AND RECOMMENDATION
RICHARD A. LANZILLO, CHIEF UNITED STATES MAGISTRATE JUDGE
I. Recommendation
Plaintiffs David E. Vucish (“Vucish”), individually and as parent and guardian of M.D.V., a minor individual, and Michelle V. Albert (“Albert”) (collectively “Plaintiffs”) commenced this action against the City of Jeannette (“City”) and two of the City's police officers, Sergeant James Joseph Phillips (“Sgt. Phillips”) and Corporal John Ryan (“Cpl. Ryan”). Plaintiffs assert federal civil rights and Pennsylvania state law claims related to the arrest of Vucish during Sgt. Phillips and Cpl. Ryan's efforts to clear the scene of a traffic accident. The Court has subject matter jurisdiction of this action under 28 U.S.C. §§ 1331 and 1367.
Presently pending before the Court is Defendants' motion to dismiss Plaintiffs' Complaint pursuant to Fed.R.Civ.P. 12(b)(5) for insufficient service of process and, alternatively, pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. (ECF No. 21). The motion is fully briefed and ripe for consideration. (ECF Nos. 22, 28). For the reasons discussed below, it is respectfully recommended that the Court grant Defendants' motion under Fed.R.Civ.P. 12(b)(5) for insufficient service of process and, in the alternative, grant in part and deny in part Defendants' motion to dismiss under Fed.R.Civ.P. 12(b)(6). If the Court reaches the issues raised in Defendants' motion pursuant to Rule 12(b)(6), it is specifically recommended that the Court dismiss the following claims:
(1) Plaintiffs' Eighth and Fourteenth Amendment claims under 42 U.S.C. § 1983 (“§ 1983”) (Count I);
(2) Plaintiff Vucish's Fourth Amendment unlawful seizure claim under § 1983 (Count I);
(3) Plaintiffs' § 1983 civil conspiracy claim (Count II);
(4) Plaintiffs' 42 U.S.C. § 1985 (“§ 1985”) civil conspiracy claim (Count II);
(5) Plaintiffs' § 1983 municipal liability claim (Count III);
(6) Plaintiffs' intentional infliction of emotional distress (“IIED”) assault and battery claims against the City (Count IV);
(7) Plaintiffs' IIED claims against Sgt. Phillips and Cpl. Ryan based on Plaintiff Vucish's unlawful arrest (Count IV); and
(8) Plaintiffs' claim for monetary damages under the Pennsylvania Constitution (Count V).
It is further recommended that the Court deny Defendants' motion in all other respects and allow the following claims to proceed:
(1) Plaintiff Vucish's Fourth Amendment excessive force claim against Sgt. Phillips and Cpl. Ryan pursuant to § 1983;
(2) Plaintiff Vucish's assault and battery claims under Pennsylvania law against Sgt. Phillips and Cpl. Ryan (Count V);
(3) An IIED claim against Sgt. Phillips and Cpl. Ryan by Plaintiffs Vucish, individually and as parent of M.D.V., and Albert based on their use of excessive force (Count IV); and
(4) Plaintiff Vucish's declaratory and injunctive relief claims under the Pennsylvania Constitution against Defendants Sgt. Phillips, Cpl. Ryan, and the City (Count VI).
Finally, it is recommended that Plaintiffs' § 1983 civil conspiracy claim related to the use of excessive force and their municipal liability claims be dismissed without prejudice and with leave to file an amended complaint because amendment as to these claims is not demonstrably futile; however, all other claims recommended for dismissal should be dismissed with prejudice based on futility of amendment.
II. Report
A. Factual Background
The following facts are accepted as true for purposes of Defendants' motion to dismiss. On May 11, 2021, at 7:45 a.m., a motor vehicle driven by Vucish's mother, Susan Vucish (“Mrs. Vucish”) and occupied by Vucish's six-year-old child, M.D.V., as a passenger, was traveling southbound on Lowry Avenue in the City of Jeannette, Westmoreland County, Pennsylvania, when it collided with another vehicle traveling in a westbound direction. Compl. (ECF No. 1) at ¶ 26. Both vehicles sustained damage severe enough to render them inoperable and require towing from the accident scene. Id. at ¶¶ 28-31. Police from the City of Jeanette Police Department were dispatched to the scene at 7:45 a.m. and arrived at approximately 7:48 a.m. Id. at ¶ 32.
Plaintiffs' Complaint is comprised of 247 paragraphs spanning 70 pages. Rather than recounting factual averments in chronological order, it restates and paraphrases witness testimony from the criminal case against Vucish arising from conduct and events following a traffic accident. Despite Plaintiffs' arguable violation of Fed.R.Civ.P. 8, this report and recommendation summaries the relevant facts to the extent they can be gleaned from the Complaint. Additionally, counsel for Plaintiffs and Defendants are cautioned to cease any further thinly veiled ad hominem vitriol akin to what they directed at each other in their respective briefs. Personal invectives against counsel and/or litigants are never appropriate. Both counsel are warned that any future filings containing such attacks will be summarily stricken. See Republic of Philippines v. Westinghouse Elec. Corp., 43 F.3d 65, 73 (3d Cir. 1994) (the Court has the inherent power to “enter orders protecting the integrity of its proceedings.”).
Upon his arrival, Cpl. Ryan called 911 and requested two duty tow trucks be dispatched to the accident scene from Schulte's Towing to remove the disabled vehicles. Id. at ¶ 33. When Jeannette Emergency Medical Services (“EMS”) arrived at the accident scene, Mrs. Vucish complained of dizziness and neck pain and had an “incredibly high” blood pressure but was alert and able to answer questions appropriately. Id. at ¶ 37. Initially, Mrs. Vucish did not want to go to the hospital, but she later agreed to be transported to the hospital for medical evaluation and care. Id. at ¶¶ 38-42. Jeannette EMS placed Mrs. Vucish in the ambulance but they were unable to leave the accident scene because to do so would have left M.D.V. unattended. Id. at ¶ 43. Plaintiff Albert, who is Mrs. Vucish's daughter and M.D.V.'s aunt, arrived at the scene and agreed to take care of M.D.V. Id. at ¶ 44. Jeannette EMS asked Albert if she wanted Jeannette EMS to transport M.D.V. to the hospital along with Mrs. Vucish, and she replied affirmatively. Id. at ¶ 45. Thereafter, Albert walked away from the Jeannette EMS, leaving M.D.V. in the presence of two Jeanette EMS personnel and an on-duty firefighter, prompting the Jeannette EMS personnel to remain at the scene. Id. at ¶ 46.
In the meantime, Vucish arrived at the accident scene and a verbal disagreement ensued between Vucish and Cpl. Ryan over the police department's intention to tow Mrs. Vucish's disabled vehicle to Schulte Towing's parking lot. Id. at ¶¶ 47, 57. Vucish argued with Cpl. Ryan over clearing the accident scene and told him not to touch Mrs. Vucish's vehicle. Id. at ¶¶ 47, 78. Cpl. Ryan prevented Vucish from speaking to the tow truck operator to inform the operator where to tow the disabled vehicle. Id. at ¶ 163. At some point, Vucish placed his body between the disabled vehicle and the tow truck, and Cpl. Ryan told him to move several times. Id. at ¶¶ 79, 84, 86. Vucish did not comply with Cpl. Ryan's orders to move so that the tow truck could remove the disabled vehicle and clear the accident scene. Id. at ¶ 89. According to Vucish, Cpl. Ryan physically poked and pushed him, which prompted Vucish to call the Westmoreland County Sherriff, James Albert, to report Cpl. Ryan's conduct. Id. at ¶¶ 163-165, 169. Vucish was then handcuffed and placed under arrest. During the arrest, Cpl. Ryan and Sgt. Phillips allegedly slammed his head and right shoulder into the vehicle, excessively tightened the handcuffs on Vucish's wrists, and pulled up on the handcuffs with the intention of injuring him. Id. at ¶¶ 169170. M.D.V. and Albert watched Cpl. Ryan and Sgt. Phillips arrest Vucish. Id. at ¶¶ 136-37; 14749. Albert used her cell phone to videotape the arrest. Id. at ¶ 47.
Vucish was charged with disorderly conduct under 18 Pa.C.S.A. § 5503(a)(4); resisting arrest under 18 Pa.C.S.A. § 5104; Obstructing Administration of Law or Other Governmental Function under 18 Pa.C.S.A. § 5101; Obstructing Highways and Other Public Passages under 18 Pa.C.S.A. § 5507(a); and Obstructing Emergency Services under 18 Pa.C.S.A. § 5112(a). Id. at ¶ 16. Thereafter, Vucish voluntarily entered Pennsylvania's Accelerated Rehabilitative Disposition (“ARD”) program to resolve the criminal charges. See Pls.' Resp. Br. (ECF No. 28) at 6 n.2, 13.
On May 11, 2023, Plaintiffs filed this lawsuit. Their Complaint asserts the following claims: (1) Vucish's unspecified Fourth, Eighth, and Fourteenth Amendment claims against Sgt. Phillips and Cpl. Ryan pursuant to § 1983, Compl. (ECF No. 1) at ¶¶ 157-182 (Count I); (2) conspiracy claims by all Plaintiffs against all Defendants pursuant to 42 U.S.C. §§ 1983 and 1985, id. at ¶¶ 183-197 (Count II); (3) a municipal liability claim by all Plaintiffs against the City pursuant to § 1983, id. at ¶¶ 198-220 (Count III); (4) an IIED claim by all Plaintiffs against all Defendants pursuant to Pennsylvania state law, id. at ¶¶ 221-228 (Count IV); (5) Vucish's assault and battery claim against all Defendants pursuant to Pennsylvania state law, id. at ¶¶ 229-244 (Count V); and (6) unspecified violations of the Pennsylvania Constitution by Vucish against all Defendants, id. at ¶¶ 245-246 (Count VI).
No action was taken by Plaintiffs to serve process upon Defendants until September 19, 2023, when Plaintiffs submitted a praecipe to issue summons for Defendants. (ECF No. 5). The summons was issued the same day, and Defendants were served on October 31, 2023. See (ECF Nos. 6, 8, 9, 10).
B. Standard of Review
1. Fed.R.Civ.P. 4(m) and 12(b)(5): Insufficient Service of Process
“A court obtains personal jurisdiction over the parties when the complaint and summons are properly served upon the defendant.” Lampe v. Xouth, Inc., 952 F.2d 697, 701 (3d Cir. 1991). In the absence of proper service, a court may not exercise jurisdiction over a defendant. Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347 (1999). A defendant can challenge the sufficiency of service of process by a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(5).
Rule 4(m) of the Federal Rules of Civil Procedure requires a district court to dismiss a case without prejudice if service is not made within 90 days of the filing of the complaint. Fed.R.Civ.P. 4(m). In appropriate circumstances, the district court may extend the time for service beyond the 90-day period. The decision whether to grant such an extension involves a two-pronged inquiry. First, the district court must determine whether good cause exists for the failure to have effected service in a timely manner. Typically, courts consider three factors to determine whether good cause exists: “(1) the reasonableness of plaintiff's efforts to serve; (2) whether the defendant is prejudiced by the lack of timely service; and (3) whether the plaintiff moved for an enlargement of time to serve.” Bailey v. Harleysville Nat. Bank & Trust Co., 2005 WL 174843, at *1 (E.D. Pa. Jan. 26, 2005) (quoting Steele v. HCI Direct, 2004 WL 1699611 at *1 (E.D. Pa. July 29, 2004)). The Third Circuit has also “equated ‘good cause' with a concept of ‘excusable neglect' of Federal Rule of Civil Procedure 6(b)(2), which requires a ‘demonstration of good faith on the part of the party seeking an enlargement and some reasonable basis for noncompliance within the time specified in the rules.'” See MCI Telecomms. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1097 (3d Cir. 1995) (quoting Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1312 (3d Cir. 1995)). If good cause exists, Rule 4(m) provides that the district court must grant the extension for service.
Absent a showing of good cause, however, the district court still may grant the extension in the sound exercise of its discretion. See MCI Telecomms. Corp., 71 F.3d at 1098 (3d Cir. 1995); Chiang v. U.S. Small Bus. Admin., 331 Fed.Appx. 113, 115 (3d Cir. 2009). When deciding whether to grant a discretionary extension for service “[a] district court may consider actual notice of the legal action; prejudice to the defendant; the statute of limitations on the underlying causes of action; the conduct of the defendant; and whether the plaintiff is represented by counsel, in addition to any other factor that may be relevant” to the issue. Chiang, 331 Fed.Appx. at 116 (3d Cir. 2009) (citing Fed.R.Civ.P. 4(m) Notes of Advisory Committee on 1993 amendments; Boley v. Kaymark, 123 F.3d 756, 759 (3d Cir. 1997)). The plaintiff bears the burden of demonstrating a sufficient basis to justify the exercise of the court's discretion. Hardina v. Panera Bread Cadle, LLC, 2012 WL 1607397 at *2 (M.D. Pa. May 8, 2012).
2. Fed.R.Civ.P. 12(b)(6): Failure to State a Claim
A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the legal sufficiency of the complaint. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a Fed.R.Civ.P. 12(b)(6) motion to dismiss, the court accepts as true all factual allegations in the complaint and views them in a light most favorable to the plaintiff. See U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). The “court[ ] generally considers] only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim” when considering the motion to dismiss. Lum v. Bank of Am., 361 F.3d 217, 222 n.3 (3d Cir. 2004) (citing In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)).
In making its determination under Rule 12(b)(6), the court is not opining on whether the plaintiff is likely to prevail on the merits; rather, the plaintiff must only present factual allegations sufficient “to raise a right to relief above the speculative level.” BellAtl. Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004)). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009). Furthermore, a complaint should only be dismissed pursuant to Rule 12(b)(6) if it fails to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570 (rejecting the traditional Rule 12(b)(6) standard established in Conley v. Gibson, 355 U.S. 41, 78 (1957)).
While a complaint does not need detailed factual allegations to survive a motion to dismiss, a complaint must provide more than labels and conclusions. See Twombly, 550 U.S. at 555. A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Moreover, a court need not accept inferences drawn by a plaintiff if they are unsupported by the facts as explained in the complaint. See California Pub. Employees' Ret. Sys. v. Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the court accept legal conclusions disguised as factual allegations. See Twombly, 550 U.S. at 555; McTernan v. City of York, Penn., 577 F.3d 521, 531 (3d Cir. 2009) (“The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”). Put another way, while the Court must view the factual allegations of the complaint as true, the Court is “not compelled to accept unwarranted inferences, unsupported conclusions or legal conclusions disguised as factual allegations.” Baraka v. McGreevey, 481 F.3d 187, 211 (3d Cir. 2007). Expounding on the Twombly/Iqbal line of cases, the Court of Appeals for the Third Circuit has articulated the following three-step approach:
First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Finally, “where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.”Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (quoting Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)). This determination is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
C. Discussion
1. Insufficient Service of Process
Defendants do not challenge the manner of Plaintiffs' service of process upon them, only its timeliness. Plaintiffs filed their Complaint on May 11, 2023, but did not serve Defendants until October 31, 2023, approximately eighty-one (81) days after expiration of the 90-day period for service prescribed by Fed.R.Civ.P. 4(m). Defendants argue that because Plaintiffs have not shown good cause to extend the time to serve the Complaint, Rule 4(m) requires dismissal of the Complaint. Defs.' Br. (ECF No. 22) at 10. Most circuit courts of appeals, including the United States Court of Appeals for the Third Circuit, have held, however, that Rule 4(m) grants discretion to the district court to extend the time for service of process even in the absence of a showing of good cause. See Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1305 (3d Cir. 1995) (“We read the new rule to require a court to extend time if good cause is shown and to allow a court discretion to dismiss or extend time absent a showing of good cause.”); McCurdy v. Am. Bd. of Plastic Surgery, 157 F.3d 191, 196 (3d Cir. 1998); Horenkamp v. Van Winkle and Co., 402 F.3d 1129, 1132 (11th Cir. 2005) (“today we join our sister circuits and hold that Rule 4(m) grants discretion to the district court to extend the time for service of process even in the absence of a showing of good cause”). Indeed, while Rule 4(m) directs that the district court “must” extend the time to serve process where the plaintiff has shown good cause for the delay, it does not mandate dismissal in the absence of good cause. See Petrucelli, 46 F.3d at 1305. The Supreme Court, albeit in dicta, also observed that the 1993 amendment to Rule 4 affords discretion to the district court to extend the time for service even in the absence of good cause. See Henderson v. United States, 517 U.S. 654 (1996). In Henderson, the Court said that under the “... 1993 amendments to the Rules, courts have been accorded discretion to enlarge the 120-day period ‘even if there is not good cause shown'.... The Federal Rules thus convey a clear message: Complaints are not to be dismissed if served within 120 days, or within such additional time as the court may allow.” Id. at 663-63. (internal citations omitted).
Since Henderson, Rule 4(m) has been amended to reduce the presumptive deadline for service from 120 days to 90 days.
The record in this case does not support a finding of good cause to excuse Plaintiffs' failure to serve the Complaint within the 90-day period specified in Rule 4(m). As noted, courts typically considered three factors in assessing whether good cause exists for purposes of Rule 4(m): “(1) reasonableness of plaintiff's efforts to serve[;] (2) prejudice to the defendant by lack of timely service[;] and (3) whether plaintiff moved for an enlargement of time to serve.” MCI Telecommunications Corp., 71 F.3d at 1097. The first and third factors weigh heavily against a finding of good cause in this case. There is no indication that Plaintiff made any effort to serve the Defendants prior to September 19, 2023, when they sought issuance of the summons, and they did not accomplish service upon the Defendants until October 31, 2023. Plaintiffs also acknowledge that they did not seek an extension of time to serve process anytime during the 90-day period specified by Rule 4(m). The second factor supports good cause, however, as Defendants have suffered no discernable prejudice because of Plaintiffs' delay.
Good cause has also been equated with “excusable neglect” akin to Fed.R.Civ.P. 6(b)(2), which requires a plaintiff to demonstrate “good faith on the part of the party seeking an enlargement and some reasonable basis for noncompliance within the time specified in the rules.” MCI Telecommunications Corp., 71 F.3d at 1097. “The inadvertence or lack of diligence of counsel are generally insufficient to establish good cause for the extension of the time period for service of process.” Cunningham v. New Jersey, 230 F.R.D. 391, 394 (D.N.J. 2005) (citing Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1307 (3d Cir. 1995)). Plaintiffs maintain that “[u]pon learning of the service mistake, [Plaintiffs] acted in good faith by having copies of the Complaint, Summons, and Standing Order to be served by Constable upon each Defendant.” Pls.' Resp. Br. (ECF No. 28) at 2, 4-6, 7. In a lengthy footnote in their brief, Plaintiffs' counsel mentions that Plaintiffs' former legal counsel died on May 21, 2022, and, due to illness, he had been unable to file the lawsuit prior to his death. Id. at 20 n.7. This unfortunate occurrence took place, however, before the lawsuit was filed by current counsel and, therefore, it does not explain current counsel's delay in service. Indeed, current counsel offer no explanation for the delay or their failure to move for an extension of the service deadline.
Because Plaintiffs have not shown diligence in attempting to timely serve the Complaint or excusable neglect for failing to do so, good cause for the delay in service does not exist to trigger a mandatory extension of the Rule 4(m) service period. Therefore, the Court must consider whether it should exercise its discretion to allow an extension of time to serve the complaint nunc pro tunc or dismiss the case. Boley v. Kaymark, 123 F.3d 756, 758 (3d Cir. 1997).
Factors to consider in permitting a discretionary extension of time for service include (1) actual notice of the litigation, (2) prejudice to the defendant, (3) expiration of the statute of limitations on the causes of action, (4) the defendant's conduct, and (5) whether the plaintiff is proceeding pro se. See Chiang, 331 Fed.Appx. at 116 (citing Fed.R.Civ.P. 4(m) Notes of Advisory Committee on 1993 amendments; and Boley, 123 F.3d at 759). The first, fourth, and fifth factors favor dismissal. The record does not support a finding that Defendants had actual notice of the lawsuit prior to service. On November 8, 2021, Plaintiffs' counsel sent a “written notice and a detailed description of the facts and legal grounds for the forthcoming federal lawsuit” to the City's Solicitor, thereby placing the Defendants on notice of Plaintiffs' potential claims and their factual basis. Pls.' Resp. Br. (ECF No. 28) at 5-6. Actual notice of a lawsuit “militates against a finding” that the defendant is prejudiced by late service. Boley, 123 F.3d at 759. Here, however, Plaintiffs' pre-litigation letter did not provide actual notice of the lawsuit itself, but only notice of a potential lawsuit. Courts have considered actual notice of a lawsuit where the plaintiff has made imperfect or defective attempts to serve process, Chiang, 331 Fed.Appx. at 116, where a third-party litigant serves the defendant with a cross-claim that includes a copy of the original complaint, Dominic v. Hess Oil V.I. Corp., 841 F.2d 513, 515 (3d Cir. 1988), and where the defendant was sent a copy of the filed complaint. Boley, 123 F.3d at 759. No court has recognized an attorney's pre-lawsuit correspondence as a factor equivalent to actual notice of a lawsuit to mitigate untimely service. Accordingly, this factor adds little or no support for the Court to exercise its discretion to extend the period for service. In addition, Plaintiffs were represented by counsel at all relevant times and therefore are not afforded the leniency provided to pro se litigants.
Regarding the statute of limitations, the Advisory Committee's Note to Rule 4(m), state:
Relief may be justified, for example, if the applicable statute of limitations would bar the refiled action, or if the defendant is evading service or conceals a defect in
attempted service.Fed. R. Civ. P. 4(m), Advisory Committee Note, 1993 Amendments.
In this case, Plaintiffs base their claims on the events of May 11, 2021. Given this, a dismissal without prejudice pursuant to Rule 4(m) would almost certainly result in Plaintiffs' claims being barred by the statute of limitations. See Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009) (holding that the applicable statute of limitations on claims under § 1983 and § 1985 based on conduct in Pennsylvania is the Commonwealth's two-year statute of limitation for personal injury actions under 42 Pa. Cons. Stat. § 5524(2)). The bar of the statute of limitations normally weighs heavily in favor of extending the time for service based on the Court's policy favoring cases being decided on the merits. See Fed.R.Civ.P. 1; McCurdy, 157 F.3d at 197. But in this case, the weight of this consideration is reduced because Plaintiffs filed their Complaint on the last day of the statute of limitations. The bar of the statute of limitations is not viewed as favorably to Plaintiffs as it would have been had they filed their lawsuit in a more expeditious manner. See McCurdy, 157 F.3d at 197; Boley, 123 F.3d at 759; Chiang, 331 Fed.Appx. at 116.
Finally, as noted, there appears to be no discernable prejudice to Defendants because of delayed service of the Complaint. A defendant is prejudiced when the delay impacts his “ability to defend on the merits, rather than forgoing such a procedural or technical advantage.” Boley, 123 F.3d at 758-760 (citations omitted). Here, Cpl. Ryan and Sgt. Phillips prepared police reports, testified at Vucish's preliminary hearing on his criminal charges, and testified a second time at his pretrial motion hearing. The existence of such a record regarding the events at issue cuts against a finding of prejudice. Likewise, Defendants do not claim that evidence has been lost or destroyed, and while they argue the Court should consider the potential for fading witness memories, Defendants do not claim that any witness has become unavailable because of the delay. See id. at 759.
Overall, the relevant factors governing the Court's discretion weigh slightly in favor of dismissal, and dismissal would be well within the Court's sound discretion. See McCurdy, 157 F.3d at 196 (affirming denial of extension of time to serve where statute of limitations had run and service was four months late); M. K. by & through Barlowe K. v. Prestige Acad. Charter Sch., 751 Fed.Appx. 204, 207 (3d Cir. 2018) (unpublished) (affirming denial of extension of time to serve where defendants were not served until 60 days after the 90-day deadline established by Fed.R.Civ.P. 4(m); Bell v. Dehorta, 2023 WL 1863299, at *2 (W.D. Pa. Feb. 9, 2023) (denying extension of Rule 4(m) service period where plaintiff asserted that requests for waiver of service were sent but service was not effectuated with the 90-day period). At the same time, although the balance of considerations tips in favor of dismissal, it cannot be said that a decision to grant a nunc pro tunc extension of the service deadline in this case would be an abuse of the Court's sound discretion, especially considering the absence of any discernable prejudice to Defendants and the statute of limitations bar to Plaintiffs' claims that would arise if this case is dismissed without prejudice. Therefore, while it is recommended that the Court grant Defendants' motion pursuant to Fed.R.Civ.P. 12(b)(5), this outcome is based on an inherently discretionary weighing of competing factors and is not compelled as a matter of law.
2. Failure to State a Claim
If the Court exercises its discretion to grant a nunc pro tunc extension for service of process, it is further recommended that certain claims be dismissed as set forth below.
As a preliminary matter, Plaintiffs' Complaint frequently refers to causes of action without associating them with a legal theory or relating legal labels to facts alleged in the Complaint. For instance, Plaintiffs refer to claims under the Fourth, Eighth, and Fourteenth Amendments, but only allege that Vucish was subjected to excessive force and unlawful seizure. The Eighth and Fourteenth Amendment claims based on excessive force should be dismissed as duplicative of the Fourth Amendment claim under the more specific provision rule. See Graham-Smith v. Wilkes-Barre Police Dep't, 2015 WL 2384274, at *4 (M.D. Pa. May 19, 2015) (unlawful seizure claim should be analyzed under the Fourth Amendment and not the Fourteenth Amendment); Graham v. Connor, 490 U.S. 386, 388 (1989) (the Fourth Amendment protects a free citizen's claim that law enforcement officers used excessive force in the context of making an arrest; the Eighth and Fourteenth Amendments protect incarcerated individuals from excessive force). Plaintiffs' Eighth and Fourteenth Amendment claims should be dismissed with prejudice because the more specific provision rule renders any attempt to amend these claims futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002) (dismissal with prejudice is appropriate where amendment would be inequitable or futile).
a. Statute of Limitations
Defendants argue that Plaintiffs failed to toll the two-year statute of limitations applicable to all claims because they did not serve the Complaint until almost six months after the statute of limitations expired. Defs.' Br. (ECF No. 22) at 12-14. Defendants' argument essentially states the practical effect that would arise if the Court dismisses the case without prejudice pursuant to Rule 12(b)(5). This argument does not provide a proper basis for a Rule 12(b)(6) motion to dismiss for failure to state a claim. Plaintiffs timely filed their complaint on the final day of the statute of limitations. Dismissal under Rule 12(b)(6) based on the statute of limitations is only appropriate where it is apparent from the face of the complaint that the limitations period expired before the action was filed. See Wisniewski v. Fisher, 857 F.3d 152, 157 (3d Cir. 2017) (“A complaint is subject to dismissal for failure to state a claim on statute of limitations grounds only when the statute of limitations defense is apparent on the face of the complaint.”). That is not the case here. Accordingly, Defendants' motion to dismiss should be denied to the extent it is based on the expiration of the statute of limitations.
b. Heck v. Humphrey, 512 U.S. 477 (1994)
Next, Defendants argue that the Court should dismiss Plaintiffs' complaint because it is barred by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Defendants argue that Vucish's entrance into Pennsylvania's ARD program is the equivalent of a conviction for § 1983 purposes and Plaintiffs' complaint “repeatedly questions the propriety of Vucish's prosecution” by alleging that Cpl. Ryan and Sgt. Phillips committed an unprovoked arrest and charged Vucish with “pretextual criminal offenses despite Vucish entering the ARD program on a resisting arrest charge.” Defs.' Br. (ECF No. 22) at 15. Plaintiffs respond that Vucish's Fourth Amendment excessive force and unlawful seizure claims are not barred by Heck because they do not implicate the ARD program. Pls.' Resp. Br. (ECF No. 28) at 13-14. Plaintiffs are correct regarding Vucish's excessive force claim but wrong regarding his unlawful seizure claim.
In Heck, the United States Supreme Court held that “to recover damages [or other relief] for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus[.]” Heck, 512 U.S. at 486-87 (footnote and internal citation omitted). In other words, a civil rights plaintiff cannot use § 1983 “to obtain damages where success would necessarily imply the unlawfulness of a (not previously invalidated) conviction or sentence.” Wilkinson v. Dotson, 544 U.S. 74, 81 (2005). Therefore, a civil rights plaintiff cannot proceed on a claim that would, if successful, effectively negate a state court criminal judgment because allowing such a claim would contravene “a strong judicial policy against the creation of two conflicting resolutions arising out of the same or identical transaction.'” Bronowicz v. Allegheny Cnty., 804 F.3d 338, 345 (3d Cir. 2015) (quoting Heck, 512 U.S. at 484).
It is undisputed that the criminal charges against Vucish were resolved by Vucish voluntarily entering the ARD program. See Commonwealth of Pennsylvania vs. David E. Vucish, CP-65-CR-0002992-2021. “When a criminal defendant is selected for and decides to participate in the ARD program, he avoids trial and potential jail time, and receives expungement for the record in exchange for successfully completing a probationary period.” Gilles v. Davis, 427 F.3d 197, 209 (3d Cir. 2005) (citing Pa. R. Crim. P. 300 et seq. and Junod v. Bader, 312 Pa. Super. 92, 458 A.2d 251, 253-54 (1983)). Entry into the ARD program, however, is not considered a favorable termination under Heck. Gilles, 427 F.3d at 211.
Vucish's Fourth Amendment unlawful seizure claim would invalidate his resisting arrest charge and entry into the ARD program to resolve it, because success on this claim would negate an element of the crime of resisting arrest, i.e., that the officer made a lawful arrest. 18 Pa.C.S.A. § 5104 (outlining that an element of the crime of resisting arrest is intentionally preventing a public servant from effecting a lawful arrest or discharging any other duty); Heck, 512 U.S. at 487 n.6 (explaining that its holding bars a civil claim for unlawful seizure where the underlying charge is for resisting arrest); James v. York Cnty. Police Dep't, 167 F.Supp.2d 719, 721 (M.D. Pa. 2001) (same). Therefore, the Court should dismiss Plaintiff Vucish's Fourth Amendment unlawful seizure claim with prejudice as amendment would be futile.
Similarly, Vucish's § 1983 civil conspiracy claim as it relates to the unlawful seizure claim would invalidate his resisting arrest charge. “To prevail on a conspiracy claims under § 1983, a plaintiff must prove that persons acting under color of state law ‘reached an understanding' to deprive him of his constitutional rights.” Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 294 (3d Cir. 2018) (quoting Adickes v. S. H. Kress & Co., 398 U.S. 144, 150-52 (1970)). Plaintiffs specifically allege that Defendants “lacked probable cause” and “wrongfully arrested” Vucish and that Cpl. Ryan and Sgt. Phillips conspired to commit perjury when they presented testimony at the pretrial hearings in connection with his criminal charges. Compl. (ECF No. 1) at ¶ 187, 190. Success on the civil conspiracy claim based on unlawful seizure would invalidate Vucish's entry into the ARD program on the resisting arrest charge because it would negate an element of that crime, i.e., that the officer made a lawful arrest. Therefore, the Court should also dismiss Plaintiffs' § 1983 civil conspiracy claim with prejudice as it relates to Plaintiffs' unlawful seizure claim because amendment as to this claim also would be futile.
The same analysis and outcome do not apply, however, to Vucish's § 1983 excessive force claim. Defendants do not explain how this claim, if successful, would invalidate Vucish's entry into the ARD program. Even a conviction for resisting arrest and assaulting a police officer does not necessarily preclude a civil rights action for excessive force against the same officer. See Garrison v. Porch, 376 Fed.Appx. 274, 277 (3d Cir. 2010). Police officers may be justified in using force to subdue a resisting or assaultive arrestee, but the force used must still be reasonable under the circumstances. See id. Heck is not implicated in excessive force claims so long as the plaintiff does not attempt to plead facts that are inconsistent with his plea, conviction, or sentence. See e.g., Lora-Pena v. F.B.I., 529 F.3d 503, 506 (3d Cir. 2008) (civil rights plaintiff's convictions for resisting arrest and assaulting officers were not inconsistent with a holding that the officers, during a lawful arrest, used excessive (or unlawful) force in response to plaintiff's own unlawful actions). Here, Vucish's excessive force claim is based on allegations that Sgt. Phillips and Cpl. Ryan slammed his head and right shoulder into the vehicle, excessively tightened his handcuffs, and lifted his restrained hands and arms thereby causing physical injuries to his hands and wrists. These factual allegations are not inconsistent with Vucish's entering the ARD program for his resisting arrest charge and, therefore, the Court should deny Defendants' motion to dismiss Vucish's Fourth Amendment excessive force claim based on Heck.
c. Younger v. Harris, 401 U.S. 37 (1971)
Next, Defendants argue that this Court should abstain from considering this case under Younger v. Harris, 401 U.S. 37 (1971) because Vucish is seeking declaratory and injunctive relief while still participating in the ARD program. Defs.' Br. (ECF No. 22) at 16-17. Plaintiffs generally respond that Younger has no application here. Pls.' Resp. Br. (ECF No. 28) at 17.
Courts are required to “abstain from enjoining pending state criminal proceedings absent extraordinary circumstances.” Younger, 401 U.S. at 43-44. Abstention is proper when (1) there are ongoing state proceedings that are judicial in nature; (2) the state proceedings implicate important state interests; and (3) the state proceedings afford an adequate opportunity to raise federal claims. Schall v. Joyce, 885 F.2d 101, 106 (3d Cir. 1989) (citing Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432, 435 (1982)). The inclusion of an ad damnum clause in Plaintiffs' Complaint in which they request unspecified declaratory and injunctive relief does not explicitly ask the Court to enjoin any pending state criminal proceedings. Accordingly, because Plaintiffs are not seeking to enjoin any ongoing state criminal proceedings, the Court should deny Defendants' motion to dismiss based on Younger abstention.
d. Conspiracy claims under 42 U.S.C. §§ 1983 and 1985
Defendants raise several arguments for dismissal of Plaintiffs' conspiracy claims against Cpl. Ryan, Sgt. Phillips, and the City under 42 U.S.C. §§ 1983 and 1985. First, noting that Plaintiffs allege that Cpl. Ryan and Sgt. Phillips conspired to provide false and perjured testimony against Vucish, Defendants assert that police officers have absolute immunity from § 1983 liability for providing testimony in criminal proceedings, even where the testimony is shown to be false or fabricated. Defs.' Br. (ECF No. 22) at 17. Defendants are correct that police officers who provide testimony in criminal proceedings, like all other witnesses, are absolutely immune from liability under § 1983 based on their testimony. See Briscoe v. LaHue, 460 U.S. 325, 336 (1983). But Plaintiffs' conspiracy claim appears to be based on an assertion that Cpl. Ryan and Sgt. Phillips conspired to perjure themselves in the criminal proceedings against Vucish, not on their alleged perjured testimony itself. See Pls.' Resp. Br. (ECF No. 28) at 18-19. Nevertheless, even assuming that such a theory of liability is viable, the claim is supported by nothing more than conclusory allegations. To state a civil rights conspiracy claim, the plaintiff must allege facts to support that two or more persons conspired to deprive a person of constitutional rights, one or more of the conspirators performed an overt act in furtherance of the conspiracy, and the overt act injured the plaintiff or deprived him of any rights or privileges of a citizen of the United States while the conspirators acted under color of state law. See Barnes Foundation v. Twp. of Lower Merion, 242 F.3d 151 (3d Cir. 2001). A claim will not survive dismissal where it provides only labels, legal conclusions disguised as factual allegations, or a “formulaic recitation of the elements of a cause of action.” See Twombly, 550 U.S. at 555 (citing Papasan, 478 U.S. at 286). Similarly, a court properly rejects inferences drawn by a plaintiff that are unsupported by the facts alleged in the complaint. See California Pub. Employees' Ret. Sys., 394 F.3d at 143 (citing Morse, 132 F.3d at 906). Plaintiffs' Complaint is far too conclusory and speculative to state any form of conspiracy claim. The Complaint also includes no factual allegations to support an inference that Defendants conspired to use excessive force on Vucish during his arrest. See Compl. (ECF No. 1) at ¶ 187, 190. While unlikely, it is possible that Plaintiffs may be able to allege additional facts to support their § 1983 conspiracy claim. Accordingly, this claim should be dismissed without prejudice and with leave to amend. If Plaintiffs elect to stand on the allegations of their current Complaint or fail to file a sufficient curative amendment by a date specified by the Court, this claim should be dismissed with prejudice.
Defendants also correctly argue that the Complaint fails to state a § 1985 conspiracy claim. See Defs.' Br. (ECF No. 22) at 18. To state a claim under § 1985, the plaintiff must allege facts to support “(1) a conspiracy; (2) motivated by a racial or class based discriminatory animus designed to deprive, directly or indirectly, any person or class of persons to the equal protection of the laws; (3) an act in furtherance of the conspiracy; and (4) an injury to the person or property or the deprivation of any right or privilege of a citizen of the United States.” Lake v. Arnold, 112 F.3d 682, 685 (3d Cir. 1997). In addition to the same defects identified in Plaintiffs' § 1983 conspiracy claim, their § 1985 conspiracy claim suffers from the additional defect that Plaintiffs have alleged no facts to support an inference that the alleged conspiracy was motivated by racial or class-based discrimination. This additional defect is fundamental and makes amendment of Plaintiffs' § 1985 conspiracy claim futile. Accordingly, it is respectfully recommended that the Court dismiss Plaintiffs' § 1985 claim with prejudice. See Farber v. City of Paterson, 440 F.3d 131, 135 (3d Cir. 2006).
e. Monell v. Dept. of Soc. Services of City of New York, 436 U.S. 658 (1978)
Defendants argue that Plaintiffs' municipal liability claim against the City should be dismissed because it is based on conclusory allegations and devoid of factual allegations to support that the City maintained a policy or custom of deliberate indifference that caused the violation of any of Plaintiffs' constitutional rights. Defs.' Br. (ECF No. 22) at 18. Plaintiffs respond that because former legal counsel provided notice of the incident alleging that it was an assault and battery and use of excessive force upon Vucish, and because the City “turned a blind eye and did nothing to reprimand, discipline or retrain” Sgt. Phillips and Cpl. Ryan and “permitted them to again commit perjury with impunity” at Vucish's criminal pretrial hearing, the City's acquiescence “constitutes an act of official government policy or custom.” Pls.' Resp. Br. (ECF No. 28) at 19. Plaintiffs' argument is frivolous.
It is well-established that a municipal entity cannot be held liable for its employees' alleged constitutional violations based on a theory of respondeat superior. Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691-95 (1978); Panas v. City of Philadelphia, 871 F.Supp.2d 370, 377-78 (E.D. Pa. 2012). Rather, the “government itself, through its policies or practices, must be sufficiently culpable before” a court imposes § 1983 liability. Panas, 871 F.Supp.2d at 37778. Such culpability exists only “when the alleged constitutional transgression implements or executes a policy, regulation, or decision officially adopted by the governing body or informally adopted by custom.” McTernan v. City of York, PA, 564 F.3d 636, 657 (3d Cir. 2009) (quoting Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996)). Merely alleging the existence of a policy, practice, or custom is not enough. Rizzo v. Goode, 423 U.S. 362, 371 (1976). A § 1983 plaintiff must show an “affirmative link” between the occurrence of alleged misconduct and the municipality's policy, custom, or practice. Id. Accordingly, “[o]nce a plaintiff has identified a policy or custom, she ‘must show that the municipal action was taken with the requisite degree of culpability, and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights.'” Abran v. City of Philadelphia, No. 18-CV-1107, 2020 WL 6781938, at *12 (E.D. Pa. Nov. 17, 2020) (quoting Vulcan Pioneers of New Jersey v. City of Newark, 374 Fed.Appx. 313, 317 (3d Cir. 2010)). If the policy does not facially violate federal law, “causation can be established only by ‘demonstrat[ing] that the municipal action was taken with ‘deliberate indifference' as to its known or obvious consequences.'” Id. (quoting Berg v. Cnty. of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000)). Thus, “in order to impose liability on a local governmental entity for failing to act to preserve constitutional rights, a § 1983 plaintiff must establish not only that he or she was deprived of a constitutional right, but that: (1) the municipality had a policy; (2) the policy ‘amounts to deliberate indifference' to the plaintiff's constitutional right; and (3) the policy was the ‘moving force behind the constitutional violation.'” Weber v. Erie Cnty., 2020 WL 5983275, at *5 (W.D. Pa. Oct. 8, 2020) (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 389-91 (1989)).
Plaintiffs have not alleged facts that support that the City maintains any policy or custom that led to any violation of constitutional rights. Indeed, the Complaint does not even intimate, let alone allege facts to support, that the City had a policy or custom of tolerating the use of excessive force by its officers. Excessive force is the only constitutional claim plausibly alleged in the Complaint. Instead of attempting to allege a policy or custom tethered to this alleged constitutional violation, Plaintiff apparently argue that because their former counsel complained to the City about Sgt. Phillips and Cpl. Ryan's behavior in connection with the arrest and charges of Vucish, and because the City did not reprimand them, the City is now liable under Monell. The City's conduct after the officers' alleged constitutional violation could not have been the “moving force” behind that violation. See City of Canton, 489 U.S. at 389-91. Furthermore, isolated incidents are not sufficient to support Monell liability except in instances involving a “facially unconstitutional, explicit” policy. Brown v. City of Pittsburgh, 586 F.3d 263, 292 (3d Cir. 2009) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 822-24 (1985)). Plaintiffs' Complaint fails to allege facts to support any of the essential elements of a municipal liability claim. Accordingly, the Court should dismiss their municipal liability claim. Because dismissal is based on a lack of factual allegations to support this claim, dismissal should be without prejudice and with leave to amend. If Plaintiff elect to stand on their current allegations or fail to file a factually supported curative amendment within by a date specified by the Court, this claim should be dismissed with prejudice.
To the extent that Plaintiffs' Complaint can be construed as asserting a failure to train claim as a theory of liability against the City, Plaintiffs have similarly failed to allege facts to support the essential element of such a claim. The Supreme Court has recognized that a local government's “culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train.” Connick v. Thompson, 563 U.S. 51, 61 (2011). “If the alleged policy or custom at issue is a failure to train or supervise ..., the plaintiff must show that this failure ‘amounts to ‘deliberate indifference' to the rights of persons with whom [the municipality's] employees will come into contact.” Johnson v. City of Philadelphia, 975 F.3d 394, 403 (3d Cir. 2020) (quoting Carter v. City of Philadelphia, 181 F.3d 339, 357 (3d Cir. 1999)). “‘[D]eliberate indifference' is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Connick, 563 U.S. at 61 (quoting Bd. of Cnty. Comm'rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 410 (1997)). Typically, a plaintiff meets this burden by identifying “a pattern of similar constitutional violations by untrained employees” that “puts municipal decisionmakers on notice that a new program is necessary....” Johnson, 975 F.3d at 403 (quoting Thomas v. Cumberland Cnty., 749 F.3d 217, 223 (3d Cir. 2014)). “Otherwise, the plaintiff needs to show that failure to provide the identified training would ‘likely ... result in the violation of constitutional rights'-i.e., to show that ‘the need for more or different training [was] so obvious.” Id. (quoting City of Canton, Ohio, 489 U.S. at 390).
The Court of Appeals for the Third Circuit applies a three-part test to determine whether “a municipality's failure to train or supervise amount[s] to deliberate indifference.” Carter, 181 F.3d at 357. A plaintiff must plead: (1) municipal policymakers know that employees will confront a particular situation; (2) the situation involves a difficult choice or a history of employees mishandling; and (3) the wrong choice by an employee will frequently cause deprivation of constitutional rights.” Id.; see also Thomas, 749 F.3d at 224-25 (quoting Board of County Com'rs of Bryan County, Okl., 520 U.S. at 409). (“Liability in single-incident cases depends on ‘[t]he likelihood that the situation will recur and the predictability that an officer lacking specific tools to handle that situation will violate citizens' rights”).
Plaintiffs have not alleged facts to explain how the City failed to train Sgt. Phillips or Cpl. Ryan, how that alleged failure to train amounted to deliberate indifference, or how the alleged failure resulted in the violation of Plaintiffs' civil rights. Conclusory recitations of the elements of a cause of action or legal conclusions disguised as factual allegations are insufficient to raise a right to relief above the speculative level. Accordingly, any Monell claim premised on a failure to train theory of liability also should be dismissed. Because dismissal is based on a lack of factual allegations to support this claim, dismissal should be without prejudice and with leave to amend. If Plaintiffs elect to stand on their current allegations or fail to file a factually supported curative amendment within by a date specified by the Court, this claim should be dismissed with prejudice.
f. Pennsylvania Political Subdivision Torts Claims Act
Defendants argue that Plaintiffs' intentional torts claims for IIED and assault and battery against the City should be dismissed because the City is immunized from tort liability under the Pennsylvania Political Subdivision Torts Claims Act, 42 Pa.C.S.A. § 8541, et seq. (“PSTCA”). Plaintiffs do not directly respond to Defendants' argument.
The PSTCA insulates government agencies, like the City, from liability for torts committed by its agents acting in their official capacities, except under limited enumerated circumstances defined by statute. 42 Pa.C.S.A. § 8541, et seq. These exceptions include: (i) the operation of motor vehicles; (ii) the care, custody or control of personal property; (iii) the care, custody or control of real property; (iv) a dangerous condition of trees, traffic controls and street lighting; (v) a dangerous condition of stream, sewer, gas or electric systems; (vi) a dangerous condition of streets; (vii) a dangerous condition of sidewalks; and (viii) the care, custody and control of animals. 42 Pa. Cons. Stat. § 8542(b). These exceptions must be strictly construed. Lindstrom v. City of Corry, 563 Pa. 579, 763 A.2d 394 (2000). Because Plaintiffs' state law claims of IIED and assault and battery against the City do not fall within the PSTCA's exceptions to immunity, those claims against the City must be dismissed with prejudice. Bell v. Twp. of Chester, 2021 WL 322774, at *3 (E.D. Pa. Feb. 1, 2021) (dismissing claims for, inter alia, IIED against a government agency under the PSTCA); Torres v. Allentown Police Dep't, 2014 WL 4081477, at *9 (E.D. Pa. Aug. 18, 2014) (dismissing claims for, inter alia, assault and battery against a government agency under the PSTCA). See also Grayson, 293 F.3d at 108.
The immunity of the PSTCA extends to employees of a government agency who is liable in his individual capacity for civil damages caused by acts within the scope of his official duties. Renk v. City of Pittsburgh, 537 Pa. 68, 641 A.2d 289, 292 (1994). But, the PSTCA does not shield employees, like Sgt. Phillips and Cpl. Ryan, from liability for “willful misconduct,” which is “synonymous with the term ‘intentional tort.'” Sanford v. Stiles, 456 F.3d 298, 315 (3d Cir. 2006). While Sgt. Phillips and Cpl. Ryan do not argue that they are entitled to immunity under the PSTCA for Plaintiffs' IIED and assault and battery claims, these claims are all intentional torts to which immunity under the PSTCA does not extend and those claims should not be dismissed on this basis. Torres, 2014 WL 4081477, at *10 (the PSTCA does not bar claims for assault and battery as intentional torts against government employee); Kokinda v. Breiner, 557 F.Supp.2d 581, 595 (M.D. Pa. 2008) (the PSTCA does not bar claims for intentional infliction of emotional distress as an intentional tort against government employee).
g. Intentional Infliction of Emotional Distress
Defendants argue that Sgt. Phillips and Cpl. Ryan cannot be liable for Plaintiffs' IIED claim because they had probable cause to arrest Vucish and the existence of probable cause negates the “extreme and outrageous” element of IIED. Defs.' Br. (ECF No. 22) at 19. They further note that Vucish resisted arrest and entered the ARD program on several criminal charges, including resisting arrest. Id. Again, Plaintiffs have not responded directly to this argument.
To sustain a claim for IIED under Pennsylvania law, a plaintiff must establish that the defendant's conduct was (1) intentional or reckless; (2) extreme and outrageous; (3) caused emotional distress; and (4) the resulting emotional distress was severe. Bruffett v. Warner Commc'ns, Inc., 692 F.2d 910, 914 (3d Cir. 1982). In considering the second element, probable cause to effect an arrest cannot support a finding of extreme or outrageous conduct. Orndorf v. Fye, 2023 WL 4034449, at *8 (W.D. Pa. June 15, 2023); Manley v. Fitzgerald, 997 A.2d 1235, 1241 (Pa. Commw. Ct. 2010) (“Police officers doing their job by arresting people when they have probable cause to do so certainly falls far short of extreme or outrageous conduct.”).
Therefore, Plaintiffs' IIED claim based on the allegedly unlawful arrest of Vucish should be dismissed with prejudice because probable cause for that arrest was established by Vucish having entered the ARD program. However, to the extent Plaintiffs' IIED claim is based on Sgt. Phillips and Cpl. Ryan's alleged use of excessive force, the claim is viable. Indeed, Defendants do not specifically move to dismiss Plaintiffs' IIED claims on that basis. To ultimately succeed on this claim, Plaintiffs will need to prove that the use of force was so extreme and outrageous “as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.” Rosembert v. Borough of E. Lansdowne, 14 F.Supp.3d 631, 645 (E.D. Pa. 2014) (citations omitted) (denying motion to dismiss IIED claim involving excessive force). But see Stanco v. Sekelsky, No. 3:22-CV-00573, 2023 WL 2577240, at *7 (M.D. Pa. Mar. 20, 2023) (“the use of excessive force to effectuate an arrest does not necessarily rise to the level of extreme of outrageous conduct necessary to support an IIED claim.”). Scrutiny of this claim, however, must await a fully developed record.
h. Pennsylvania Constitutional Claims
Lastly, Defendants argue that Plaintiffs' unspecified claims under the Pennsylvania Constitution should be dismissed because no private cause of action for money damages is authorized for such violations. Defs.' Br. (ECF No. 22) at 20. Again, Plaintiffs do not respond to this argument. Defendants are correct that Pennsylvania has not created a private right of action for monetary damages for violations of the Pennsylvania Constitution. Therefore, Plaintiffs' claims for monetary damages under the Pennsylvania Constitution should be dismissed with prejudice as amendment would be futile. Jones v. City of Philadelphia, 890 A.2d 1188, 1208 (Pa. Commw. Ct. 2006) (“[N]either Pennsylvania statutory authority nor appellate case law has authorized the award of money damages for violation of the Pennsylvania Constitution.”); Pocono Mountain Charter Sch. v. Pocono Mountain Sch. Dist., 442 Fed.Appx. 681, 687 (3d Cir. 2011). See also Grayson, 293 F.3d at 108.
Plaintiffs also assert claims for unspecified declaratory and equitable relief under the Pennsylvania Constitution. See Compl. (ECF No. 1) at pp. 69-70. Because Defendants do not move to dismiss those claims, and because such remedies are available under the Pennsylvania Constitution, Jones, 890 A.2d at 1216, it is not recommended that those claims be dismissed.
D. Conclusion
Based on the above, it is respectfully recommended that the Court grant Defendants' motion to dismiss under Fed.R.Civ.P. 12(b)(5) for insufficient service of process and dismiss Plaintiffs' Complaint.
Alternatively, it is respectfully recommended that the Court grant in part and deny in part Defendants' motion to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim as follows: It is recommended that the Court grant Defendants' motion to dismiss with respect to
(1) Plaintiffs' Eighth and Fourteenth Amendment claims under § 1983 (Count I);
(2) Vucish's Fourth Amendment unlawful seizure claim under § 1983 (Count I);
(3) Plaintiffs' § 1983 civil conspiracy claim (Count II);
(4) Plaintiffs' § 1985 civil conspiracy claim (Count II);
(5) Plaintiffs' § 1983 municipal liability claim (Count III);
(6) Plaintiffs' IIED and assault and battery claims against the City (Count IV);
(7) Plaintiffs' IIED claims against Sgt. Phillips and Cpl. Ryan related to the alleged unlawful arrest of Vucish (Count IV); and
(8) Plaintiffs' claim for monetary damages under the Pennsylvania Constitution (Count V).
It is further recommended that the Court deny the remainder of Defendants' motion and that the following claims proceed:
(1) Vucish's Fourth Amendment excessive force claim pursuant to § 1983 against Sgt. Phillips and Cpl. Ryan;
(2) Vucish's assault and battery claim under Pennsylvania law against Sgt. Phillips and Cpl. Ryan (Count V);
(3) Vucish, M.D.V., and Albert's IIED claim related to the use of excessive force against Sgt. Phillips and Cpl. Ryan (Count IV); and
(4) Vucish's claims for declaratory and injunctive relief under the Pennsylvania Constitution against Sgt. Phillips, Cpl. Ryan, and the City (Count VI).
It is further recommended that Plaintiffs be permitted to file an amended complaint to the extent they are able to allege, in good faith and consistent with the requirement of Fed. R. Civ. 11, additional facts to cure the deficiencies of their § 1983 civil conspiracy claim related to the use of excessive force and their municipal liability claim. If Plaintiffs elect to stand on the allegations of the current Complaint or fail to file a curative amendment by a date specified by the Court, these claims should be dismissed with prejudice. All other claims recommended for dismissal herein should be dismissed with prejudice.
Therefore, pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), Federal Rule of Civil Procedure 72, and the Local Rules for Magistrates, the parties have until June 18, 2024 to object to this report and recommendation. Unless otherwise ordered by the District Judge, responses to objections are due fourteen days after the service of the objections. Failure to file timely objections will waive any appellate rights. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).